Federal Criminal Law & Process – Page 38 – Marquette University Law School Faculty Blog

Seventh Circuit Criminal Case of the Week: Of Lifelines and Waiver

Post author:Michael M. O'Hear
Post published:August 22, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Judges & Judicial Process Seventh Circuit

seventh circuit

When a lawyer is making what is clearly a losing argument, a judge will sometimes throw the lawyer a lifeline, using a question to suggest a more fruitful line of attack. An astute lawyer will follow the judge’s cue and adapt his or her argument accordingly.

Such does not seem to be the case with the lawyer in United States v. Foster (No. 08-1914).

Last year, in United States v. Smith, 544 F.3d 781 (7th Cir. 2008), the Seventh Circuit held that a conviction for criminal recklessness in Indiana does not count as a prior “crime of violence” for purposes of triggering the fifteen-year mandatory minimum of the Armed Career Criminal Act. Darryl Foster, however, was given the ACCA sentence enhancement based on a prior conviction for criminal recklessness in Indiana. Looks like a slam-dunk issue on appeal, right?

Seventh Circuit Criminal Case of the Week: Experience and Confidence Count

Post author:Michael M. O'Hear
Post published:August 18, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Seventh Circuit

seventh-circuit51 Once a person comes under police suspicion for dealing drugs, does that person retain any constitutionally protected right to privacy in his own home? Of course, the answer is “not much” if the police have some specific reason to believe that the house has been used for storing or selling drugs. But what if the police have only general information that the home-owner is dealing drugs, without any specific information connecting the house to drug trafficking? Even then, the Seventh Circuit indicated last week, the police may have probable cause to search the house for evidence of drug transactions.

John Orozco was convicted of drug and gun offenses based, in part, on evidence found in his home while police executed a search warrant. On appeal, he argued that the evidence should have been suppressed because the warrant was issued without probable cause.

Seventh Circuit Criminal Case of the Week: What Is a Crime of Violence?

Post author:Michael M. O'Hear
Post published:August 9, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

seventh circuit

The Armed Career Criminal Act and § 4B1.1 of the federal sentencing guidelines both provide for lengthened prison terms for certain defendants with three or more prior convictions for crimes of violence. It’s clear that certain prior convictions qualify (e.g., rape and armed robbery), but there are a surprisingly large number of offenses in the gray area between violent and nonviolent.

As I discussed in an earlier post, the Supreme Court recently developed a new definition for “crime of violence” in Begay v. United States, 128 S. Ct. 1581 (2008), in which the Court held that prior DUI convictions do not trigger ACCA’s fifteen-year mandatory minimum. Begay cast a lot of circuit-court precedent into doubt, and the Seventh Circuit has been struggling ever since to develop a consistent, coherent approach to identifying what types of offenses count as “violent.” (See, for example, this post.) Meanwhile, the Supreme Court has also remained active in this area. Last term, for instance, the Court held that failure to report to prison and walkaway escapes are not crimes of violence in Chambers v. United States, 129 S. Ct. 687 (2009). And the Court recently granted cert in Johnson v. United States to decide whether a battery offense counts as violent.

Reflecting the turbulence in this area of the law, the Seventh Circuit had three — count ’em, three — notable new opinions dealing with the “crime of violence” question last week.